By Jody Godoy

Law360 (March 20, 2020, 7:25 PM EDT ) Federal judges are facing mounting calls to rethink criminal sentences and think twice before sending people to prison, where conditions are ripe for the novel coronavirus to spread quickly.

Defendants and inmates at every stage in the criminal justice process are factoring the threat from the pandemic into requests to remain free or be released from institutions. The Bureau of Prisons' recently released mitigation plan appears aimed at keeping the virus out of prisons, but, as of Thursday, two prison staff were presumed to have contracted the disease, according to reports.

Federal public defenders and at least one member of Congress have called on the U.S. Department of Justice to rethink its enforcement strategies in light of the potential danger. In a few recent cases, judges granted defendants relief in part because of the pandemic. Others did not.

In each instance, federal judges have acknowledged the seriousness of the potential problem. Here is a roundup of rulings in which judges addressed concerns about COVID-19 from those facing prison or detention.

Bail Granted in NYC Gang Case

U.S. District Judge Alison J. Nathan granted bail Thursday for Dante Stephens, one of the defendants in a massive gang case out of Manhattan.

"Reconsidering the defendant's bail conditions is appropriate in light of circumstances that have changed" since Stephen's detention hearing in early March, the judge wrote.

In addition to the "exponential" increase in the COVID-19 case numbers in New York, new evidence in Stephens' case indicated an arresting officer had suspected someone else of having the gun.

"Even if the court were to conclude that changed circumstances did not compel reconsideration of the defendant's bond conditions, a separate statutory ground advanced by the defendant would require his release here," the judge wrote.

U.S. Code Title 18, Section 3142 governs detention and allows for defendants to be released for "compelling" circumstances. Judge Nathan found that Stephens' inability to prepare for trial amid the BOP lockdown, which has banned visits from the public including attorneys, could hamper his defense. Stephens' counsel had sought an exception but not been granted it, according to the order.

The case is U.S. v. Stephens, case number 1:15-cr-00095, in the U.S. District Court for the Southern District of New York.

Bail Denied in Drug Conspiracy Case

U.S. District Judge Paul W. Grimm denied bail Tuesday for Adam Martin, a defendant accused in Maryland federal court of participating in a drug conspiracy.

Judge Grimm's order began with a discussion of the pandemic. Prosecutors had argued that the BOP has dealt with infectious disease in the past, but the judge replied that those maladies "pale in scope with the magnitude and speed of transmission of COVID-19."

The outbreak constitutes "new information" that bears on the detention calculus, the judge said.

"Indeed, the Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness," Judge Grimm wrote.

However, the judge denied the request, upholding a magistrate judge's ruling that Martin should be detained because of the evidence of his role in the conspiracy, his alleged willingness to use violence and his criminal history.

The judge also noted that "location monitoring is not a limitless resource, nor is its installation and monitoring by United States Pretrial Services officers without risk to those personnel."

The case is U.S. v. Marton, case number 1:19-cr-00140, in the U.S. District Court for the District of Maryland.

Wildlife Trafficker Gets New Probation Terms

Also on Tuesday, U.S. District Judge Robert C. Jones modified probation conditions for Robert Barkman, who pled guilty to trafficking in endangered animal parts. Barkman had been sentenced to intermittent confinement for two days a week in the Washoe County Detention Facility in Nevada.

The decision discussed the pandemic and its effect on jails at some length, concluding, "The question is not if there will be a COVID-19 outbreak at the jail. It is when."

Barkman's sentence was to begin Wednesday, but Judge Jones suspended it for 30 days, writing that having Barkman shuttle to and from the jail presented a risk both within the jail and without.

"The men and women incarcerated at Washoe County Detention Facility are a part of our community and all reasonable measures must be taken to protect their health and safety," the judge wrote.

The case is U.S. v. Barkman, case number 3:19-cr-0052, in the U.S. District Court for the District of Nevada.

No Home Detention for Embezzler

U.S. District Judge Victor A. Bolden on Thursday rejected a request by Paul Gileno to serve out the remaining eight or so months of his yearlong sentence in home detention.

Gileno pled guilty last year to one count of wire fraud and one count of tax evasion after he was accused of embezzling from a Connecticut nonprofit. He started serving his sentence in January but may be eligible for release in October.

Gileno had asked the court to modify his sentence, citing the risk of COVID-19 among other factors. Judge Bolden said Gileno had not followed the proper procedure, which would have required him to make a request to the BOP and wait 30 days. The judge also found that Gileno had not provided "extraordinary and compelling" reasons for release.

"At this time the court cannot assume that the Bureau of Prisons will be unable to manage the outbreak or adequately treat Mr. Gileno should it emerge at his correctional facility while he is still incarcerated," Judge Bolden wrote.

The case is U.S. v. Gileno, case number 3:19-cr-00161, in the U.S. District Court for the District of Connecticut.

--Editing by Breda Lund and Kelly Duncan.

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